I originally reported that the ban seemed to broad enough to include a prohibition on coffee beers – but it appears that is not the LCB’s intention. Breathe easy, beer lovers.

This law is being implemented under the State’s emergency powers, which provide for expedited regulatory powers in times of need. The law is temporary and will expire in March 2011. Thus, the LCB will be prompted to begin the regular law-making procedure to put together a final, more clear, regulation.

Here is the current language that is being put in place:

WAC 314-20-022Alcohol energy drinks. No product that combines beer, strong beer, or malt liquor with caffeine, guarana, taurine, or other similar substances which are commonly referred to as “alcohol energy drinks” may be imported into the state, produced, manufactured, distributed, sold or offered for sale by a licensed retailer in the state of Washington after November 17, 2010.

Many will say that the language is a bit broad, referring to products that “combine beer….with caffeine…which are commonly referred to as ‘alcohol energy drinks’.” First of all many products, including coffee, contain caffeine. Secondly, “alcohol energy drinks’ is an undefined term that could bear a myriad of meanings.

Its difficult to enact a regulation that specifically applies to a particular product. Remember, the LCB doesn’t simply want Four Loko to stop referring to itself as an “energy drink” in order to avoid the law. So, the LCB will have to use discretion in how this law is enforced until a more clear final regulation is put in place.

The LCB will rely on the purpose of this law in determining its enforcement. The purpose was to prevent that production and sale of “energy drinks” that are pre-mixed with alcohol. In fact, the LCB’s fact sheet specifically states that the ban does not implicate the mixing of liquor and energy drinks (i.e. Red Bull & Vodka), stating that “the ban applies only to pre-mixed, malt-based products.”

Coffee beers are pre-mixed beverages containing added caffeine. So, they fall along the lines of this regulation. Alas, the LCB does not intend to go after them, as they are not commonly referred to as “alcohol energy drinks.” It requires a bit of interpretation, but it will work for most in the beer industry.

The LCB informed me that coffee beers will not be implicated because brewers add coffee, not caffeine, and for the sole purpose of flavor. The difference is that Four Loko, and beverages like it, add caffeine, and for the sole purpose of “energy.”

The combination of recent alcohol poisoning and the difficulty of regulating a small sample of a particular type of product (“energy” drinks v. caffeine-added drinks) might require the LCB to enact a more sweeping regulation. Thus, it may behoove the Washington Brewers Guild and other brewing groups to get involved in the new rule-making procedure.